The Illinois Trial Practice Weblog

Blawg Review #127: A Roundup with a Jury-Selection Twist

Milwaukee trial lawyer and jury consultant Anne Reed gives the latest issue of Blawg Review a jury-selection twist in Blawg Review #127. The roundup of law-related weblog posts is organized around a set of reminders about jury selection, as follows:

• Assume nothing;
• Look for leaders . . .
• . . . and dissenters;
• Watch for points of view;
• Look for skills;
• Notice how they process information;
• Know what generational differences mean, and don't;
• Pay attention to the quiet ones;
• Remember they have lives;
• Not all jurors are like you;
• Some just want to get back to work;
• Learn the publicity, whether it's national . . .
• . . . or local;
• They want the big picture;
• If you're lucky, you'll have a juror artist;
• Make a good impression; and
• Remember the majesty.

Check it out. And remember that the Blawg Review weblog has information about next week's host and instructions how to get your blawg posts reviewed in upcoming issues.

Cross-Examining Experts During Depositions: A Tip

Some lawyers try to improve their pre-trial settlement positions by conducting a full-blown cross-examination during an opposing expert’s deposition. The alternative is to stick to the usual goals of expert depositions: finding out what opinions the expert holds, then exploring the weaknesses in these opinions. This all becomes fodder for the later cross-examination at trial.

Which is the better approach? The risks of cross-examining during a deposition are obvious. As I wrote in my book Depositions Checklists and Strategies, "Previewing your cross-examination during a deposition may help to prepare your opponent for trial. Even if you manage to destroy the expert completely, a crafty opponent can often find a way to designate another, setting you back a step."

Now a friend has suggested a third approach, which brings us to the tip: videotape your expert depositions. By using video, you can conduct some limited cross-examination without losing much of the dramatic impact, since you can use the videotape for impeachment at trial.

The friend who uses this approach tells me his goal is to get five to ten minutes of good impeachment material during each deposition. An example would be successfully leading an expert out on a limb by extrapolating one of his weak opinions into an insupportable conclusion. Without a video record, the impact of this deposition testimony might be lost at trial. The expert will be ready for the trap and impeachment with the prior transcript might be hard to follow. Using video puts you in a stronger position. When the expert takes a different fork in the road to avoid your trap, you can cue up the video for impeachment and have the drama of the expert’s insupportable testimony reenacted in real time.

While nothing at trial ever goes exactly as planned, it’s a tip that’s worth a try.

Legal Podcasts: I'm Going to Listen To These Two

In terms of numbers of episodes, it's fairly new: The Digital Edge: Lawyers and Technology. But I've listened to parts of the first two episodes and they're both very interesting. I'm going to listen to them in full:

• Better than Batman’s Belt: Our Favorite Utilities

• Courtroom Technology: Lawyers Go Hollywood

Hosting The Digital Edge are Sharon Nelson, President of legal-tech company Sensei Enterprises, Inc., and Jim Calloway, director of the Oklahoma Bar Association Management Assistance Program and proprietor of Jim Calloway's Law Practice Tips. Thanks for the link to Celia C. Elwell, a paralegal in Oklahoma City.

Organizing Complicated Cases for Discovery

Complex cases can be a discovery nightmare, especially if you don't have a handle on what information will be most important to your case. Figuring this out involves thinking ahead to trial--towards the plaintiff's proof and the defendant's defenses--well before you normally would.

Two tools to help you get your mind around complex cases are pattern jury instructions and trial notebooks. Both will get you thinking about the trial evidence that you'll need to pin down in discovery.

If you want yet another method, try this mental game. Imagine you are going to a file a motion for summary judgment. It doesn't matter whether you're on plaintiff's side or the defendant's: using pattern jury instructions or case law, ask what proof will be required at trial. Think not only about the claims and defenses, but proving them up with real-life evidence. This exercise will allow you to answer some follow-up questions:

• What facts are material to the claims or defenses?
• Which ones are likely to be undisputed?
• Which ones are likely to remain in dispute?

Once you list these facts in what I call a "proof chart" -- a necessary component of any trial notebook -- you'll be well on your way to making sure your discovery plan covers all the facts that will be most critical at trial.

Motivating Yourself for Trial: Start a Notebook Early

If you're dragging your feet on a case that's getting a little stale, it's time to start a trial notebook. It doesn't matter if the trial is still months away. If you're a litigation junkie, seeing sections in your notebook like "witnesses" and "opening" and "closing" will immediately fire you up to get moving again on the case. Besides, it's always a good idea to conduct discovery with an eye towards your trial evidence (and the likely jury instructions). So you can't go wrong getting an early start.

You'll find more information here: "A Method of Organizing a Trial Notebook."

The Paperless Law Office: A Report from the Trenches

The thing that's often missing from discussions of the "paperless law office" is a description of the hardware and software that's actually being used. At the South Carolina Trial Law Blog, David Swanner gives some of these particulars in his post, "The Myrtle Beach Lawyer Goes Digital." Check it out.

Related Posts:

1. "Do Away with Paper Entirely? Not Me"

2. "Notes on a Paperless Office by Ernest Svenson"

3. "One More About the Paperless Law Office"

Legal Writing: How to Begin a Brief or Memorandum

At the trial court level, most lawyers begin their briefs with an "Introduction" section. There's nothing wrong with this approach, but it leads to the mistaken notion that you should actually put an introduction in the introduction. You shouldn't.

Think of your your introduction more as an executive summary. Don't just introduce what's to come; instead, summarize everything that follows. You don't have to limit yourself to a single paragraph; use as much space as you need to summarize all your best points. Make the introduction self-contained--that is, summarize all the best parts of what's to come later in the brief--so that a judge doesn't have to read any further. You can cite cases or quote from them. If possible, be entertaining. At the very least, adopt a confident, decisive tone. Make it clear there's no way you can lose.

This is all easier said that done. After the continuation, I've posted a few examples from some of my own briefs. I don't mean to suggest they are models of style, but you'll get an idea of what I've described as a proper introduction. And since many lawyers follow this model in their own practice, you can begin to collect examples from briefs you run across in in the wild that you think have strong introductions.

For other writing tips, the Legal Writing Category of this weblog or some of the articles I've done from the Illinois Bar Journal:

• "Five Steps Towards Persuasive Writing";
• "Improve Your Legal Writing with Five Simple Rules"; and,
• "First Drafts Made Easy."

Preparing Your Client for a Video Deposition: Tips from the Camera Crew

"Video Deposition Tips" is a short article from Fade to Black Productions. Read it to learn more about the following tips:

• Hold the deposition at the home or office of the deponent;
• Discuss wardrobe options with the witness;
• Make sure the background is pleasing;
• Be aware of any nervous habits the witness may have;
• Sit next to the camera lens;
• Keep the direct examination short;
• Illustrate the testimony with photos, charts, or models;
• Make sure to take a lunch break;
• Make sure you can understand the witness;
• Set up the exhibit shots before the deposition.